A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §61-2-14g; and to
amend and reenact §61-2-28 of said code, all relating to the
creation of a misdemeanor crime of unlawful restraint called
Celena’s Law.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §61-2-14g; and to amend
and reenact §61-2-28 of said code, all to read as follows:

ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-14g. Unlawful restraint in the first degree; unlawful restraint in the second degree; penalties; definitions.

This section is known as “Celena’s Law.”

(a) Unlawful restraint in the first degree -- Any person who,
without proper legal authority, intentionally restrains another by
use, attempted use, or threatened use of force is guilty of a
misdemeanor and, upon conviction, is confined in jail for not more
than one year, or fined not more than $500, or both.

(b) Unlawful restraint in the second degree -- Any person who,
without proper legal authority, intentionally restrains another by
use of deception or threat other than threat of force, is guilty of
unlawful restraint in the second degree and, upon conviction, shall
be confined in jail for not more six months, or fined not more than
$100, or both.

(c) Any person convicted of a violation of subsection (a) of
this section who, in the ten years prior to said conviction, has
been convicted of a violation of either subsection (a) of this
section or subsection (b) or (c), section nine of this article
where the victim was a current or former spouse, current or former
sexual or intimate partner, a person with whom the defendant has a
child in common, a person with whom the defendant cohabits or has
cohabitated, a parent or guardian, the defendant’s child or ward or
a member of the defendant’s household at the time of the offense or
convicted of a violation of section twenty-eight of this article or
has served a period of pretrial diversion for an alleged violation
of either subsection (a) of this section or subsection (b) or (c),
section nine of this article or section twenty-eight of this
article when the victim has such present or past relationship shall
upon conviction be subject to the penalties set forth in section
twenty-eight of this article for a second, third or subsequent
criminal act of domestic violence offense, as appropriate.

(d) For purposes of this section, the term “restrain” means to
restrict a person’s movements by holding, confining, moving or
detaining the person, without the person’s consent, so as to
interfere substantially with his or her personal liberty.

(e) In any prosecution under this section, it is an
affirmative defense that:

(1) The defendant acted reasonably and in good faith to
protect the person from imminent physical danger; or

(2) The person restrained was a child less than eighteen years
old and that the actor was a parent or legal guardian, or a person
acting under authority granted by a parent or legal guardian of
such child, or by a teacher or other school personnel acting under
authority granted by section one, article five, chapter eighteen-a
of this code and that his or her sole purpose was to assume control
of such child.

(f) This section does not apply to acts done in performance of
duty by any law-enforcement officer.

§61-2-28. Domestic violence -- Criminal acts.

(a) Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or
household member, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for not
more than twelve months, or fined not more than $500, or both.

(b) Domestic assault. –- Any person who unlawfully attempts to
commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her family
or household member in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not more than six
months, or fined not more than $100, or both.

(c) Second offense. -– Domestic assault or domestic battery.

A person convicted of a violation of subsection (a) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article,
where the victim was his or her current or former spouse, current
or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant’s
child or ward or a member of the defendant’s household at the time
of the offense or who has previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section, or a violation of subsection (b) or (c), section nine of
this article or subsection (a), section fourteen-g of this article,
where the victim was a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant’s child or ward or
a member of the defendant’s household at the time of the offense is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than sixty days nor more than one
year, or fined not more than $1000, or both.

A person convicted of a violation of subsection (b) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article or subsection (a), section fourteen-g of this article,
where the victim was a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant’s child or ward or
a member of the defendant’s household at the time of the offense or
having previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section or subsection
(b) or (c), section nine of this article or subsection (a), section
fourteen-g of this article, where the victim was a current or
former spouse, current or former sexual or intimate partner, person
with whom the defendant has a child in common, person with whom the
defendant cohabits or has cohabited, a parent or guardian, the
defendant’s child or ward or a member of the defendant’s household
at the time of the offense shall be confined in jail for not less
than thirty days nor more than six months, or fined not more than
$500, or both.

(d) Any person who has been convicted of a third or subsequent
violation of the provisions of subsection (a) or (b) of this
section, a third or subsequent violation of the provisions of
section nine of this article or subsection (a), section fourteen-g
of this article, where the victim was a current or former spouse,
current or former sexual or intimate partner, person with whom the
defendant has a child in common, person with whom the defendant
cohabits or has cohabited, a parent or guardian, the defendant’s
child or ward or a member of the defendant’s household at the time
of the offense or who has previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section or a violation of the provisions of section nine of this
article or subsection (a), section fourteen-g of this article, in
which the victim was a current or former spouse, current or former
sexual or intimate partner, person with whom the defendant has a
child in common, person with whom the defendant cohabits or has
cohabited, a parent or guardian, the defendant’s child or ward or
a member of the defendant’s household at the time of the offense,
or any combination of convictions or diversions for these offenses,
is guilty of a felony, if the offense occurs within ten years of a
prior conviction of any of these offenses and, upon conviction
thereof, shall be confined in a state correctional facility not
less than one nor more than five years or fined not more than
$2,500, or both.

(e) As used in this section, “family or household member”
means “family or household member” as defined in section two
hundred four, article twenty-seven chapter forty-eight of this
code.

(f) A person charged with a violation of this section may not
also be charged with a violation of subsection (b) or (c), section
nine of this article for the same act.

(g) No law-enforcement officer may be subject to any civil or
criminal action for false arrest or unlawful detention for
effecting an arrest pursuant to this section or pursuant to
section one thousand two, article twenty-seven, chapter forty-eight
of this code.

NOTE: The purpose of this bill is to create a misdemeanor
crime of unlawful restraint and when the offender has a present or
past domestic relationship with the victim, upon conviction is
subject to the penalties set for the second, third or subsequent
criminal act of a domestic violence offense, as appropriate.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.